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368 So. 2d 670

Docket No. 78-1049.

Thompson v. State

Ray Walter THOMPSON, Appellant, v. The STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided March 20, 1979.

District Court of Appeal of Florida · decided 1979-03-20

Cited by 7 later decisions — most recently July 1981

7 state decisions

Key passage — most relied on by later courts

“Because he made no objections below either to the court's instructions or to the pertinent verdict form, we do not consider his alternative claim, raised for the first time on appeal, that the elements of the lesser included crime of which he was convicted were not alleged in the information. Under the circumstances of this case, which are very similar to those involved in Andrews v. State, 309 So.2d 576, 577 (Fla. 1st DCA 1975) (specially concurring opinion), the alleged error was not a fundamental one which may be reviewed notwithstanding the defendant's failure to preserve the point below. Andrews v. State, supra; see also Smith v. State, 344 So.2d 905 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 678 (Fla. 1977); McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971); compare Minor v. State, 329 So.2d 30, 31 (Fla. 2d DCA 1976), and cases cited.”

quoted by 1 later decision, including 372 So. 2d 525 - Lumia v. State

Relies on C. D. W. v. State · 254 So. 2d 406 - McPhee v. State · 329 So. 2d 30 - Minor v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1979-03-20

View the full empirical analysis of this case →

¶1J. Edward Worton, Key West, for appellant.

¶2*671 Jim Smith, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.

¶3Before SCHWARTZ, J., and CHARLES CARROLL (Ret.) and EZELL, BOYCE F., Jr., (Ret.), Associate Judges.

¶4SCHWARTZ, Judge.

¶5On the authority of Wilson v. State,359 So.2d 901 (Fla. 3d DCA 1978), we reject the defendant-appellant's contention that he was privileged to trespass into the trailer where his wife was staying with a male friend.

¶6Because he made no objections below either to the court's instructions or to the pertinent verdict form, we do not consider his alternative claim, raised for the first time on appeal, that the elements of the lesser included crime of which he was convicted were not alleged in the information. Under the circumstances of this case, which are very similar to those involved in Andrews v. State,309 So.2d 576, 577 (Fla. 1st DCA 1975) (specially concurring opinion), the alleged error was not a fundamental one which may be reviewed notwithstanding the defendant's failure to preserve the point below. Andrews v. State, supra; see also Smith v. State,344 So.2d 905 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 678 (Fla. 1977); McPhee v. State,254 So.2d 406 (Fla. 1st DCA 1971); compare Minor v. State,329 So.2d 30, 31 (Fla. 2d DCA 1976), and cases cited.

¶7Affirmed.

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